Citation Nr: 1524246
Decision Date: 06/08/15 Archive Date: 06/19/15
DOCKET NO. 12-16 261 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina
THE ISSUES
1. Entitlement to service connection for residuals of burns to the right arm and torso.
2. Entitlement to service connection for shortness of breath, to include asthma and bronchitis.
3. Entitlement to service connection for residuals of a shrapnel injury to the right arm, to include pain, stiffness and neurological symptoms.
4. Entitlement to service connection for a right leg disorder (claimed as right leg stiffness).
5. Entitlement to service connection for a skin disorder (tinea versicolor).
6. Entitlement to service connection for abdominal hernia.
7. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD).
8. Entitlement to total disability based on individual unemployability.
REPRESENTATION
Appellant represented by: Jan Dils, Attorney
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
M.H. Stubbs, Counsel
INTRODUCTION
The Veteran served on active duty from November 1986 to August 1991. Although not listed on his DD 214, the Defense Personnel Records Information Retrieval System showed that the Veteran earned the Combat Action Badge.
These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2009 and January 2011 (right arm and leg stiffness) rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.
The Veteran appeared and testified at a personal hearing in March 2015 before the undersigned Veterans Law Judge. He additionally testified at a formal DRO hearing in June 2013. Transcripts from both hearings are contained in the record.
The Veteran's record consists of a paper claims file and virtual records (VBMS and VVA). The Board has reviewed all evidence of record.
In Rice v. Shinseki, 22 Vet. App. 447 (2009) held that a claim of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders, whether expressly raised by a veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to individual unemployability is based has already been found to be service connected, as part of a claim for increased compensation. Here, the Veteran reported to VA care providers and during his Board hearing that he has difficulty maintaining employment, and therefore tends to be on and off employed. As marginal employment is taken into consideration in TDIU decisions, the Board will additionally consider a claim for TDIU.
Although the Veteran initially filed a claim for service connection for shortness of breath, the Board has considered this claim as broadened to include other respiratory disorders. Additionally, during the Board hearing the Veteran clarified that his claim for stiffness of the right arm was really a symptom associated with his shrapnel wound to his right arm. As such, the Board has recategorized the claim for service connection for a residuals of a right arm shrapnel wound to contemplate his right arm stiffness. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the veteran cannot be held to a medical level of understanding of differences between psychiatric disorders, so that his claim for one also must be considered a claim for any other psychiatric disability whose presence is supported by the record).
The Veteran's claim of entitlement to service connection for inguinal hernia was granted in an August 2014 rating decision. As this is a full grant of the benefit on appeal, the issue is no longer before the Board.
The issue(s) of entitlement to service connection for burns, residuals of a shrapnel wound to the right arm, right leg stiffness, shortness of breath, a rating in excess of 70 percent for PTSD, and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDINGS OF FACT
1. At the March 2015 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran, through his representative, requested withdrawal of the appeals for entitlement to service connection for a skin disorder (tinea versicolor) and abdominal hernia.
2. During the appeal period, the Veteran's PTSD has manifested in symptoms such as sleep disturbance, nightmares, loss of interest in activities, isolation, irritability, impaired impulse control, and periods of violence, resulting in at least occupational and social impairment with deficiencies in most areas.
CONCLUSIONS OF LAW
1. The criteria for withdrawal of the appeal of service connection for a skin disorder (tinea versicolor) have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2014); 38 C.F.R. § 20.204 (2014).
2. The criteria for withdrawal of the appeal of service connection for an abdominal hernia have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204.
3. The criteria for an initial rating of 70 percent for PTSD have been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.130, Diagnostic Code 9411
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103 , 5103A, and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159, provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. They also require VA to notify the claimant and the claimant's representative of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.
The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between an appellant's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006).
The Board finds that all notification and development action needed to arrive at a decision as to the claims have been accomplished through July 2008 and March 2010 notice letters, the Veteran was notified of the information and evidence needed to substantiate his claims. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) ). He was also informed about the general criteria for how VA assigns disability ratings and effective dates. A remand for further notification of how to substantiate the claims is not necessary.
Regarding the duty to assist, the Board also finds that VA has adequately fulfilled its obligation to assist the Veteran in obtaining the evidence necessary to substantiate his claim. The evidence includes VA treatment records, and statements from the Veteran. He was afforded June 2009 and October 2010 psychiatric evaluations. The VA medical opinions are based upon review of the claims folder and clinical examination by appropriately qualified healthcare professionals. The rationales for the opinions are based upon the examiner's clinical experiences and relevant (or absence of) published medical studies. As discussed in detail below, the Board is providing an increased PTSD rating, and remanding for further evaluation of a total PTSD rating. The Veteran did not report to a 2014 PTSD examination, and has reported he was not given notice of this missed examination.
The Court has held that the provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam); See also 77 Fed. Reg. 23128 -01 (April 18, 2012).
At the March 2015 hearing, the undersigned identified the issues on appeal. The Veteran provided testimony as to all treatment received for these disabilities. The Veteran's representative requested additional VA examinations regarding a number of the issues on appeal, as the Veteran did not receive notice of a scheduled 2014 examination, and the representative argued additional 2014 examinations were inadequate. The Veteran testified regarding his ongoing PTSD symptoms and their social and occupational impact, with the help of his representative and the VLJ. The duties imposed by Bryant were thereby met.
Accordingly, the Board is satisfied that the duty-to-assist requirements under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c) have been satisfied.
Appeals Withdrawal
The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204.
In the present case, the Veteran has withdrawn the appeal as to the issues of entitlement to service connection for a skin disorder (tinea versicolor) and abdominal hernia on the record during the Board hearing; hence, there remains no allegations of errors of fact or law for appellate consideration with regards to these issues. Accordingly, the Board does not have jurisdiction to review the appeal as to these issues and they are dismissed.
PTSD
Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.
The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119 (1999).
The Veteran seeks an increased rating for his service-connected PTSD under 38 C.F.R. § 4.130, Diagnostic Code 9411. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. See 38 C.F.R. § 4.126.
The pertinent provisions of 38 C.F.R. § 4.130 relating to rating psychiatric disabilities read as follows:
A 50 percent rating is assigned when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Diagnostic Code 9411.
A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and an inability to establish and maintain effective relationships. Id.
A 100 percent evaluation is warranted where there is evidence of total occupational and social impairment due to gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living; disorientation to time or place; memory loss for names of close relatives, own occupation or own name. Id.
The psychiatric symptoms listed in the above rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002).
Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the American Psychiatric Association 's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM- IV), p. 32). An examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered, but it is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment. See 38 C.F.R. § 4.126 ; VAOPGCPREC 10-95 (Mar. 1995); 60 Fed. Reg. 43186 (1995).
During the March 2015 hearing, the Veteran's representative argued that an additional examination was necessary as the Veteran felt that his symptoms had worsened since his last examination in 2010. He testified that his PTSD symptom of anger/short temper was the worst of his symptoms. Stress would turn into anger. This happened on one occasion after he was let go from a job, which he believed caused his anger to "flare-up." At another job, he was fired because he "just didn't go" because he was stressed. He stated he got along with his supervisors at his prior job "pretty well." He indicated his anger is generally directed at family. He testified that he was incarcerated twice for physical altercations, which he attributed to his anger flare ups. He "gets depressed because it is hard for [him] to take care of [himself] and hold down employment." When asked if he had any friends, he stated he had one, but when asked to describe their relationship, he stated they "kind of don't have a relationship now." He stated in the last five years, his longest employment was for six months when he cleaned movie theaters. His representative noted that the Veteran's anger comes out at strangers as well, and referenced an altercation with a VA employee after a hearing appointment was "messed up." "So when things go wrong, [the Veteran's] anger comes out."
During the June 2013 RO hearing, the Veteran's representative argued that the Veteran's PTSD symptoms more closely approximated to a rating of 50 or 70 percent because the 2009 and 2010 VA examinations showed severe depression and severe anxiety, anger, irritability, numbness, isolation, detachment, impaired impulse control with episodes of violence and markedly diminished interested in activities. The Veteran testified that since 2010 his symptoms had increased. He stated he has nightmares every night, and does not sleep but one or two hours a night. He gets "pretty anxious" "every so often." He stated he had anxiety attacks, but they were hard to describe. He described feeling "uncomfortable" and having to leave whatever situation he was in that triggered the attack. He stated he had these attacks three to four times a month. He attempted to avoid the attacks by staying to himself and away from people and crowds. He was incarcerated "for assault." Although the Veteran attempts to control his anger, he described it as a "constant problem." He stated that he feels the biggest problems with his PTSD are "the lack of sleep, the anger and the wanting to be alone." He testified that he has a problem being "told what to do," and when asked for an example, he stated that when he was incarcerated he had a disciplinary action taken against him for not listening to a woman in charge of his work in the kitchen. He stated he "sometimes" thinks he is unable to work because of his PTSD. He was able to complete work where he was in a room by himself, and he liked that job, but he was then moved into another job where he worked in a warehouse, and he was not able to maintain that employment. He "has trouble with any job where [he] has to be around others." He was "incarcerated at Charlotte Mecklenburg County Jail until December 2010."
The earliest record in the claims file regarding the Veteran's psychiatric and substance abuse history is from a May 2000 mental health intake summary. He was referred to mental health due to substance abuse. His level of "drinking and drug use has met the disapproval of his lady-friend, and he was" seeking treatment. He began participation in an outpatient rehabilitation program. By October 2000, the Veteran denied a history of psychiatric treatment in the prior month, and reported abstinence from alcohol and drugs in the prior 30 days. He denied psychological or emotional problems.
The Veteran had an initial psychiatric evaluation in April 2009 with the Salisbury VA Medical Center. He reported a history of crack cocaine, marijuana and alcohol use. He was homeless and jobless at the time of the evaluation. He stated he began using drugs when he was 25 years old, and his usage has been "out of control" since 1991. The VA treatment record noted that in 2006, the Veteran "went to prison for three years for robbery, kidnapping and conspiracy." He was incarcerated for two and a half years, and released in February 2007. He denied homicidal and suicidal thoughts, he denied hopelessness and depression. He reported he had decreased his substance abuse for a period of time, but tragically his wife and young child died in a fire in 2005, and his substance abuse increased again. On mental status evaluation, his memory was intact, speech was goal-directed, he was without delusions or hallucinations, his affect was appropriate, his insight and judgement were good, his impulse control was good, and he was alert and oriented. He was diagnosed with cocaine, alcohol and cannabis dependence, as well as "rule out substance induced mood disorder with mixed features," and a history of depression and PTSD. He was assigned a GAF of 60.
Another April 2009 VA treatment record noted the Veteran had past domestic violence legal issues." The Veteran complained of being "stressed, tired and to have developed 'a real violent temper.'" He stated he felt be became violent since he "returned from Desert Storm." He reported he started to use crack cocaine in 1983. He also "had thoughts of suicide last year but has no plans" for suicide. He reported "a lifetime history of legal problems related to substance use." He spent 33 months incarcerated during his lifetime.
The Veteran had inpatient substance abuse treatment from April to May 2009. In July and September 2009, the Veteran denied suicidal and homicidal ideation. In September 2009, the Veteran reported to his VA care providers that the police were called due to an altercation between the Veteran and his girlfriend. The Veteran argued with police and was wrestled to the ground and placed in handcuffs. When he was being put into a police car, he pushed the door and hit a police officer. He was then "maced." The VA care providers contacted the jail and found out that the Veteran was incarcerated for "damage to state or local government property."
In June 2009, the Veteran was afforded a VA PTSD examination. He reported difficulty with anxiety, depression, nightmares, flashbacks and other signs of PTSD, along with significant substance abuse since his service in Desert Storm in 1991. He stated that recently he had difficulty sleeping more than four or five hours in a typical 24-hour period and sleep most of the time during the day, despite medications. He has anger and irritability issues and decreased energy. He reported he "had strong suicidal ideation in the past" but he never attempted suicide. He reported he abused alcohol, marijuana and cocaine until April 2009, when he was admitted to an inpatient substance abuse program. He stated he had private and VA psychiatric treatment in the past, but nothing since his discharge from the substance abuse program. He reported he was an E-3 during service, but was "busted to E-1 at the time of his discharge because of one incident when he got into an altercation with a Sergeant and a later incident when he was accused of being AWOL." He indicated that he last worked in February 2009, when his substance abuse became too much to handle. He felt he could (June 2009) perform a similar job with "no more than mild to moderate impairment, mainly secondary to anxiety, flashbacks and insomnia with associated fatigue." Although he reported that he was widowed from his second wife (divorced from his first), the Veteran did not report to the examiner that he lost a child in 2005 as well.
On mental status evaluation, the Veteran was oriented and cooperative. There was no sign of a gross thought disorder, hallucinations or delusions. He complained of difficulty focusing and concentrating. He "rated himself as having moderately severe to severe anxiety a great deal of the time and depression, which can be quite severe, as well, right after a flashback or nightmare." He has anger and irritability issues. He denied current suicidal or homicidal ideation or intent. "There is no evidence of panic attacks, although he does have frequent anxiety attacks, mainly related to things that remind him of combat, such as loud noises or nightmares. He is recently sober." He related flashback and nightmares of his combat experiences several times per week. He had increased startle response, hypervigilance, interpersonal guardedness, avoidance of and exaggerated response to, trauma-related triggers, feelings of detachment and estrangement from others, decreased interest in hobbies and social activities, emotional numbing, and feelings of a foreshortened life. He was diagnosed with PTSD with associated depression, and alcohol, marijuana and cocaine dependence in recent remission. He was assigned a GAF of 55. The examiner noted that the Veteran was showing moderate impairment in social and occupational functioning, and his current level of adjustment is "dependent upon continuing psychotropic medication."
In May 2010, the Veteran was noted to have a history of polysubstance abuse and an anxiety disorder. He reported difficulty finding employment because he is a convicted felon. He reported he was kicked out of a rehabilitative program because he was not following the rules. He indicated he stopped going to the program because he "got into a conflict with a girl there, who he was dating." He was attempting to get into a different rehabilitative program. He denied being depressed, but he "still struggles with some anxiety." He denied suicidal thoughts. He had no manic or psychotic symptoms. On mental status exam, he was well-groomed, cooperative, and had fair eye contact. His affect and speech were normal. He was assigned a GAF of 50.
In October 2010, the Veteran was afforded a second VA examination. He reported depressive episodes approximately every other day, lasting one to two days. He reported anxiety (situational anxiety) approximately three times a month, lasting several days at a time. His only inpatient treatment was for substance abuse between April and May 2009. He reported he was on probation for making a threatening phone call to a former girlfriend. The Veteran denied making the threatening phone calls. He was living with a cousin during the examination, and previously lived with an aunt. He stated that there was tension living with his aunt as he frequently would accidentally set off the alarm system by being up late at night. He was unemployed at the time of the examination. He reported having "a couple of close friends that he sees approximately twice per week." He reported a history of violence with friends, family and strangers, but no legal problems as a result. His last anger outburst was in 2009, when he broke televisions and chairs as a result of a fight over noise with a neighbor, but he did not physically assault anyone. He continued to drink alcohol, smoke marijuana and use cocaine daily at the time of the exam.
On mental status evaluation, the Veteran was clean and neatly groomed. He was cooperative and friendly, and his speech was unremarkable. His mood was euthymic. He described difficulty falling and staying asleep at night and sleeping during the day instead. He would sleep roughly four to six hours in a 24-hour period. He did not have obsessive behavior, panic attacks, homicidal or suicidal thoughts. He had fair impulse control, with episodes of violence including assault on others and breaking objects when he is angry. His recent memory was mildly impaired, such as forgetting appointments or directions. He was diagnosed with polysubstance abuse and depressive disorder, with a GAF of 55. The examiner noted he did not meet the criteria for a DSM-IV diagnosis of PTSD, but he had mood disturbances of mixed depression and anxiety which met the criteria for a diagnosis of depressive disorder. He reported his substance use was secondary to his mood disruptions, because he would use substances to "relax and feel better." The examiner found that "it is impossible to determine at this evaluation without resorting to undue speculation whether the Veteran's current functional problems are the result of a mood instability that is primarily due to a general medical condition or substance induced in nature."
In October 2012, the Veteran reported that he was incarcerated in North Carolina, and that he had an expected release date in May 2013. He informed VA that after he was released he would be living in a halfway house for "inmates on probation" because he was currently homeless (in "VA's Hud Vash program.") He did not provide a return address or list the name of the facility where he was incarcerated. Subsequent to testifying at his June 2013 RO hearing, the Veteran was requested to provide a release for treatment records during his incarceration; however, he did not provide such releases, and therefore any evidence from his incarceration is not currently of record.
In adjudicating a claim, the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Here, the Board notes that there are some discrepancies in the claims file regarding the Veteran's claimed disabilities onset and ongoing treatments. However, his statements regarding his psychiatric symptoms have been fairly consistent in complaints of sleeplessness, irritability, anger, nightmares, and anxiety.
Having carefully reviewed the evidence of record, the Board finds that the evidence of record supports the assignment of a 70 percent evaluation for PTSD throughout the period on appeal. 38 U.S.C.A. § 5107; 38 C.F.R. § 4.7. The evidence shows that, throughout the appeal period, the Veteran's psychiatric disorder (initially diagnosed as PTSD and subsequently as depressive disorder) been manifested by symptomatology which falls between the ratings for a 50 percent (social and occupational impairment with reduced reliability) and 70 percent (social and occupational impairment with deficiencies in most areas, such as work, family relations, thinking and mood). His GAF scores have noted serious to moderate symptoms, and the 2009 examiner indicated the Veteran had moderate impairment. The Veteran has reported severe sleep impairment and what he considers severe anxiety. Based on the Veteran's occasional denial of depression or to have improved sleep, the majority of his symptoms fall within the 50 percent rating criteria. Indeed, the Veteran does not have symptoms such as irrelevant speech, obsessional rituals, near-continuous panic or depression, spatial disorientation or neglect of personal hygiene. However, the Veteran's record does show that he has impaired impulse control with periods of violence and poor judgment (assaulting his girlfriend, police, committing robbery, breaking things when he is angry, substance abuse). The 2010 examiner has stated that it is not possible to determine whether the Veteran's substance abuse was caused by his mood disorder or his substance abuse triggered his symptoms. The Veteran has testified that his anger began after his combat service. Although the Veteran falls within the two ratings, the Board will assign the greater rating of 70 percent due to his impaired impulse control with periods of violence. There is no current basis for a staged rating. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged ratings"); see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings).
The Veteran was last afforded a VA examination in October 2010, and his treatment records and statements have indicated continued substance abuse and an additional incarceration. The Veteran has also testified that he has had on and off employment as a result of his PTSD symptoms. As such, further development is required to ascertain whether a rating in excess of 70 percent is warranted. Further, the Board is also remanding a claim of entitlement to TDIU based on the Veteran's statements regarding his employability.
ORDER
The appeal as to the issue of entitlement to service connection for a skin disorder (tinea versicolor) is dismissed.
The appeal as to the issue of entitlement to service connection for an abdominal hernia is dismissed.
Entitlement to an initial rating of 70 percent for PTSD/depressive disorder is granted.
REMAND
Unfortunately, a remand is required in regards to the Veteran's claims. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. Such development would ensure that his due process rights, including those associated with 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326, are met.
Initially, the Board notes that the available service records in the claims file are copies provided by the Veteran, and are not complete. A March 2009 records request has a handwritten note that DPRIS provided a negative answer for records, and indicated that the Veteran's records were at the National Personnel Records Center. An envelope (presumably from NPRC) notes that there were "no records in microfiche, dental or health." A February 2009 deferred rating decision noted that a memo of unavailability should be added to the claims file. There is no indication if the Veteran's personnel records were also sought. As the Veteran's representative was able to provide some records, on remand an additional attempt should be made to obtain the Veteran's service and personnel records. If the records remain unavailable, a memorandum of unavailability should be added to the claims file.
Burns, Right arm, and Right leg
During his Board hearing, the Veteran testified that during his service he was walking through oil fields when a can in the ground exploded (a "pop" explosion) and hot liquid burned him and several others. He stated the liquid melted the sleeves off their uniforms and flak jackets. He described his injuries as 3rd degree burns on 30 percent of his body, from his upper arm to his chest, neck and torso. He stated he did not realize at first that he had shrapnel from this injury, but that they realized the injured men were cut once they were taken to a medical tent. The shrapnel is limited to the Veteran's right arm. The Veteran's representative argued that the July 2014 VA skin examination was inadequate because the examiner stated that the Veteran denied burns, and "did not ask" about scaring on the trunk and arm. The Veteran testified that he has pain in his right arm due to "metal shrapnel" still contained "actually inside my bone."
During his June 2013 hearing, the Veteran described joint stiffness in his right arm and which he attributes to injuries from the explosion. He noticed his leg was stiff about a month after he returned from Iraq, and stated it would "give out on occasion and his knee and ankle would pop." He stated an x-ray showed that from his ankle to part way up his calf was "shattered," and a bone scan for density showed his right leg had "pieces" or "lines" in it.
In July 2009, the Veteran complained of right foot pain from arch to ankle. He stated his pain in his foot began in 1991. In a separate treatment note, the Veteran reported he sustained a foreign body to his right forearm in Operation Desert Storm 19 years prior. He had a scar approximately 3-4 cm anterior to the foreign body. He believed that the shrapnel caused his hand to occasionally "lose control" and he drops objects. He saw a private physician who planned to remove the object, but he moved from NY to Charlotte before the scheduled removal. He also stated he was in a car accident several years ago but did not sustain any injuries, but at one time was told that this may have been how he got the object in his forearm. Imaging from April 2009 showed a triangular radiopaque foreign body projected over the lateral aspect of the dorsum of the radius shaft distally about 4 cm off from the radiocarpal joint spaces.. He was assessed with foreign body with questionable nerve injury. The Veteran was informed that "even if the foreign body were removed, there is no guarantee that his symptoms of intermittent neuropathy or motor dysfunction to his right hand would improve." Notably, he complained of similar neurological symptoms in his lower extremities.
In August 2009, the Veteran had a neurology consultation. He reported that in Desert Storm in 1991 he sustained burns to his right side and right forearm and he "thinks he was knocked out." A month later he noted intermittent loss of control of his right hand or right hand locks up and he has pain and sometimes swelling. Also, the Veteran was in a car accident in 1991 where he sustained a fracture of his right elbow. He was assessed with intermittent right hand dysfunction with foreign body in distal right forearm. The neurologist indicated the possibility of "complex regional pain syndrome (reflex sympathetic dystrophy)." He reported he was treated for his broken elbow at Medical University of South Carolina, and he was seen at a "NY private hospital" for the foreign body-but the name of the hospital was not provided.
In August 2009, an x-ray of the right ankle showed "less bony changes than the left, which is not problematic." But the record did not describe the bony abnormalities. A bone scan was not of record.
On remand, any missing VA records should be added to the claims file, and the Veteran should be contacted for releases for treatment records from private providers in North Carolina and New York.
In July 2014, the Veteran was afforded several examinations. The scar examination report noted "no response provided" regarding if the Veteran had any scars of the trunk and extremities. The examiner noted that photographs were not indicated. The examiner noted that the examination request form asked about burn scars to the right arm, but that "the Veteran denies any burn scars and none were noted on examination." The skin disease examination noted that the Veteran had a diagnosis of tinea versicolor (he has withdrawn a claim of service connection for this disease). The examiner noted that the rash appeared on the torso and arms, but that it was asymptomatic at the time of the examination. This would tend to indicate that the Veteran examined the Veteran's torso and arms; however, the Veteran testified during his Board hearing that the examiner did not evaluate those areas because he did not evaluate the Veteran's burns.
A VA knee and leg examination noted the Veteran had a diagnosis of patella femoral syndrome, and that he complained of several years of his right knee locking. He had evidence of moderate right patellar subluxation. The examiner stated the Veteran's belief that his knee disability was due to running and rucking in service. The examiner provided a negative opinion regarding this theory of onset. During his Board hearing, the Veteran testified that his leg disability was more closely associated with his ankle than his knee, and that the wrong part of his leg was focused on during the examination.
As mentioned, the Veteran claims that his disabilities are due to an injury sustained during a combat situation, from an exploded device in Iraq. His Combat Action Ribbon implicate 38 U.S.C.A. § 1154(b). When a veteran has engaged in combat with the enemy, satisfactory lay or other evidence "shall be accepted as sufficient proof of service connection" for certain diseases or injuries, even if "there is no official record of such incurrence or aggravation in such service." Id. Section 1154(b)'s presumption may be rebutted only by clear and convincing evidence. Id. Here, there is some discrepancy in the record regarding what the Veteran reported during VA examinations and what he reported during the Board hearing. His representative has argued that the VA examinations are in adequate because they did not include evaluation of his burns or of his right ankle and lower leg. To afford the Veteran the full opportunity to demonstrate these injuries, the Board will remand for additional examinations. The evaluation of his right arm should include evaluation for burns and for residuals of a shrapnel injury.
Shortness of Breath
In December 2014, the Veteran was treated for a viral upper respiratory infection. The Veteran's representative provided these private Carolina Healthcare records. He was noted to have a history of smoking. During the Board hearing, the Veteran testified that he had been diagnosed with asthma and bronchitis. His representative reported that July 2014 pulmonary function tests showed a restrictive airway abnormality. The representative argued that the VA respiratory examination did not address the Veteran's exposure to burning oil fields and that his asthma was tied to his smoking without addressing his in-service exposures. Personnel records provided by the Veteran show that he was exposed to "heavy atmospheric smoke generated as a result of numerous (in excess of 500) oil-well fires [in Kuwait]. The likelihood and nature of any potential long-term health hazard as a result of this exposure are unknown at this time."
The July 2014 VA examination diagnosed the Veteran with asthma. The examiner noted that the Veteran reported a history of exposure to fumes and burning oil fields in service, and that he developed shortness of breath with exertion since his exposure in service. Pulmonary function test results were provided in the examination report. The examiner found that the Veteran's "current symptoms are more likely than not the result of his active history of smoking tobacco and his admitted past use of crack cocaine." The examiner, however, did not provide a rationale for this opinion linking his asthma to his smoking of tobacco and crack cocaine versus his exposure to burning oil fields. On remand, an addendum nexus opinion should be sought.
PTSD and TDIU
The Veteran testified that he did not receive notice of a scheduled 2014 VA PTSD examination. Given that the Veteran reported to VA examinations in July 2014, the Board will assume that he did not receive notice of the PTSD examination. He testified during a Board hearing that his PTSD symptoms had worsened since his 2010 VA examination. Indeed, the record indicates that he was incarcerated again in 2013. VA treatment records for the Veteran do not include treatment past 2010. As such, ongoing records should be obtained and the Veteran should be rescheduled for an updated VA PTSD examination.
The Veteran's claim for TDIU is inextricably intertwined with this ongoing increased PTSD claim and service connection claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The PTSD examiner should provide a statement regarding the Veteran's employability.
Accordingly, the case is REMANDED for the following action:
1. Provide the Veteran corrective VCAA notice which informs the Veteran of the evidence necessary to establish TDIU.
2. Forward a VA Form 21-8940 to the Veteran, and subsequently forward a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefit, to the former employers listed on the Veteran's submitted VA Form 21-8940.
3. Attempt to obtain the Veteran's complete service treatment and personnel records through appropriate sources. If the Veteran's records remain unavailable, create a memorandum of unavailability for the record which addresses VA's attempts to obtain the records.
4. Request that the Veteran provide releases for medical records for his treatment in the Charlotte Mecklenburg County Jail (and any other facilities in which he was incarcerated), the Medical University of South Carolina (for treatment of a fractured right elbow), and any private treatment records from a neurologist in New York.
5. Add ongoing VA treatment records to the virtual record.
6. Return the record to the July 2014 VA respiratory examiner for an addendum opinion, if available. The examiner should note the January 1992 service personnel record which shows that the Veteran was exposed to heavy atmospheric smoke generated as a result of numerous (in excess of 500) oil-well fires in Kuwait between February and March 1991.
The examiner should provide an opinion as to whether it is at least as likely as not (a 50/50 probability or greater) the Veteran's diagnosed asthma, or his 2014 upper respiratory infection, are a result of his military service, to include exposure to burning oil wells.
Each opinion provided must be accompanied by a rationale/explanation.
7. Schedule the Veteran for a VA scar examination. The examiner should review the claims file and virtual record in conjunction with interview and evaluation of the Veteran.
The examiner is asked to address the Veteran's claim that he was burned by a hot liquid on his right arm, upper chest and torso. Additionally, the examiner should review the Veteran's right arm for signs of a shrapnel wound scar.
For any identified scars, the examiner should opine whether it is at least as likely as not (50/50 probability or greater) that the Veteran's scars are a result of his military service.
Each opinion provided must be accompanied by a rationale/explanation.
8. Schedule the Veteran for a VA neurological examination. The examiner should review the claims file and virtual record in conjunction with interview and evaluation of the Veteran.
The examiner is asked to address the Veteran's claim that he suffered a shrapnel wound to his right arm in service, which has resulted in stiffness and "occasional loss of control" of his right hand.
For any identified right arm disability, the examiner should opine whether it is at least as likely as not (50/50 probability or greater) that the disability is a result of his military service.
Each opinion provided must be accompanied by a rationale/explanation.
9. Schedule the Veteran for a VA ankle and leg examination. The examiner should review the claims file and virtual record in conjunction with interview and evaluation of the Veteran.
The examiner is asked to address the Veteran's claim that he suffered a right leg injury after an explosion in service.
For any identified right leg disability (described by the Veteran as his right ankle and lower leg), the examiner should opine whether it is at least as likely as not (50/50 probability or greater) that the disability is a result of his military service.
Each opinion provided must be accompanied by a rationale/explanation.
10. Schedule the Veteran for a PTSD examination. The examiner should review the claims file and virtual record in conjunction with interview and evaluation of the Veteran.
The examiner should comment on whether the Veteran suffers from more than one psychiatric disorder, and, if so, if it is possible to separate which symptoms are associated with each diagnosed disorder.
Additionally, the examiner should address whether it is at least as likely as not (50/50 probability or greater) that his service connected disability(ies) alone and in conjunction render him unable to secure and maintain substantially gainful employment. The examination must describe any functional impairment and the impact of the service connected disorder on physical and sedentary employment. If additional VA examinations are required, they must be scheduled.
11. Thereafter, the AMC/RO must readjudicate the issues based on all the evidence of record. If the benefits sought remain denied, the Veteran and his representative must be provided a supplemental statement of the case and must be afforded an appropriate opportunity to respond
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs